Responding to War Crimes

Hezbollah -- not Israel -- is guilty of war crimes in Lebanon.

Discussing how Israel should respond to war crimes accusations puts the wrong party in the dock. This diverts the agenda away from Hezbollah -- a terrorist group that committed war crimes in the recent war that far exceed in gravity and quantity all those Israel is accused of.

Hezbollah launched thousands of rocket and mortar attacks on civilian areas in northern Israel far away from plausible military targets, deliberately targeting civilians in violation of the rule of distinction -- one of the most important of the laws of war. Hezbollah still holds two Israeli prisoners of war incommunicado, without permitting access to the Red Cross, in violation of the laws of prisoners of war in the Third Geneva Convention. Hezbollah combatants fought while disguised as protected persons such as non-combatant civilians, thereby committing illegal acts of perfidy. They placed their military assets and carried out military operations in schools, hospitals, residential areas, and next to international peace-keeping forces in order to use protected persons as shields, another violation of the international laws of war.

Hezbollah is an organization that illegally calls for genocide, commits acts of aggression and crimes against humanity.

Hezbollah is an organization that illegally calls for genocide and commits acts of aggression, crimes against humanity, and continues to hold arms in violation of Lebanon's binding international commitments. By permitting Hezbollah to operate in Lebanon, Lebanon violates its obligations under Security Council Resolution 1373, adopted under Chapters 7 of the UN Charter, as well as its obligations under the Genocide Convention.

Understanding the Laws of War

Are Israel's critics correct in accusing it of war crimes during the war this summer? No. According to the laws of war, Israel's critics are wrong once again.

The laws of war are a longstanding feature of international law, perhaps the oldest set of international laws. There are two basic kinds of laws of war: jus in bello and jus ad bellum.

Jus ad bellum is the body of law that determines when states are allowed to initiate armed conflict and when states are considered to be illegal aggressors. The modern rules of jus ad bellum are thoroughly straightforward and can be found in the UN Charter. Accordingly, one may dispatch forces into international armed conflict in only two cases: (1) after authorization by the Security Council under Chapter 7 of the UN Charter, or (2) in self-defense, which includes collective self-defense. These limitations don't apply to non-international armed conflict. Jus ad bellum places no limits on the use of armed force within a state.

Jus in bello is the body of law that determines how states may use military force once armed conflict has begun. Jus in bello is not encoded in any single treaty and is instead found in customary international law, which is that set of international rules that has grown up over the years out of state behavior and traditional legal understandings.

There are three basic rules of jus in bello and most others can be derived from these three. Number one is the rule of distinction. One must distinguish between legitimate and illegitimate targets, and military attacks must be aimed only at legitimate targets, which are those that contribute to the military effort. I've used the term "legitimate targets" rather than "military targets" because many targets that are not military in the everyday sense of the word are legitimate targets when destroying or neutralizing them offers a definite military advantage.

In its official commentary on the First Additional Protocol to the Geneva Conventions of 1977, the International Committee of the Red Cross (ICRC) says not only that the presence of civilians inside or in the immediate proximity of military objectives does not undermine the legitimacy of attacking those military targets, but also that purely civilian objects may, in combat conditions, become military objectives. Thus, for example, the ICRC commentary mentions that there is no doubt that civilian roads are legitimate targets where a belligerent wants to prevent the enemy from passing through those roads. So the proper formulation is that legitimate targets may be struck, but illegitimate targets -- those that don't contribute a definite military advantage -- may not be struck.

The second major rule of jus in bello is proportionality. It is permissible to attack legitimate targets even if one knows that there will inevitably be additional damage to protected targets such as hospitals or civilians, as long as the damage to the civilians is proportionate to the military need.

For both proportionality and distinction, what is important is intent, not result.

For both proportionality and distinction, what is important is intent, not result. It may turn out after the fact that an attack was based on faulty information and results in disproportionate loss of civilian life, but that doesn't make the attack retroactively illegal. The legal question is always whether the disproportionate results should have been anticipated. You must have some sort of intent or knowledge of causing excessive damage in order to violate the rule of proportionality. The role of intent is even clearer with regard to distinction. If one aims at a legitimate target using legitimate weapons, etc., the attack abides by the rule of distinction, even if it turns out after the fact that only civilians were struck.

The third major rule of jus in bello is simply that one should not carry out even permissible attacks in such a way as to cause unnecessary suffering - suffering that is not related to military advantage.

Now there are a few subsidiary rules that emerge from these main rules. For example, it's forbidden for a combatant to pretend to be a civilian in order to avoid attack, which is a crime called perfidy. It is also forbidden for combatants to attempt to hide themselves behind civilian shields. That would be considered a violation on the target side of the rule of distinction.

Civilian Houses Used by Hezbollah Are Legitimate Targets in War

Perhaps the best-known charge made by international NGOs such as Human Rights Watch and Amnesty International is that Israeli attacks in Lebanon violated the rule of distinction. Yet if you look at the actual charges, you will see that they are made on the basis of bad or no evidence, linguistic misdirection, non sequiturs, and misapplication or misstatement of accepted legal standards.

Amnesty International describes extensive destruction of residential buildings, over 1,000 Lebanese dead -- of which an unknown number were civilians, and the destruction of dozens of bridges, roads, and ports as well as fuel stations and commercial enterprises. There is no systematic discussion anywhere in its report of Hezbollah's fighting positions, its methods of combat, its methods of movement and communication, or whether Hezbollah's combatants dressed like civilians. Instead, Amnesty argues that the physical destruction speaks for itself and demonstrates that Israel violated the principle of distinction.

To put it bluntly, this approach has no basis in the laws of war. If one sees a residential home bombed, or even 50 bombed homes, has one seen evidence of a war crime? One cannot know without more information. Again, the ICRC commentary says that if fighting between armed forces takes place in a town which is defended house by house, it is "inevitable that every house will become a legitimate military target."

This means that when one looks at a residential home that has been damaged, one has to know where this home was in relation to the fighting. How did the fighting take place? Where were the combatants? Where was their weaponry? Without knowing these things, it is impossible to know whether or not a war crime took place. In towns like Bint Jbeil and Maroun a-Ras, where there was house-to-house fighting, it was inevitable that scores of residential houses would be damaged or destroyed.

Given that Hezbollah fighters based themselves almost exclusively in residential areas, and located their arms there, many residential houses became legitimate military targets.

Given that Hezbollah fighters based themselves almost exclusively in residential areas, and located their arms almost exclusively in residential areas, many residential houses became legitimate military targets. Under the laws of war, if a residential house serves as a base or a hiding place for combatants or a storehouse for weaponry, it is a legitimate military target. The same is true even of such buildings as hospitals or schools. If they are used as weapons depots or combat bases, they are legitimate military targets, no matter what they are used for in ordinary civilian life.

The same can be said of Human Rights Watch's citations of attacks in which numerous Lebanese civilians were killed. Because Hezbollah fighters in residential homes are legitimate targets, as well as the roads on which they expect to travel and the buildings they use for storehouses, it is legal for Israel to attack those targets even if there will be inevitable collateral damage including dead civilians. Moreover, as noted earlier, the question of intent is crucial. If a belligerent attacks what it believes is a legitimate target, and it turns out after the fact that the intelligence was faulty and only civilians were killed, there is no war crime.

It is legal for armed forces to make mistakes. It is not a war crime if after the fact one turns out to be wrong in believing that a house contains a combatant. Israel targeted the areas where it believed Hezbollah was, where it believed Hezbollah might bring in arms or bring out hostages, and where Hezbollah intended to gain military advantage. If, as is inevitable, Israel made occasional mistakes in targeting, that is not a war crime. It is to be expected.

Thus, when one sees dead civilians, it is crucial to know not just where the nearest legitimate targets were, but also what intelligence assessments said. Simple visual examinations tell us nothing since both legitimate and illegitimate targets dressed as civilians, drove civilian vehicles, and stationed themselves in civilian areas. Given that all of the Hezbollah fighters illegally hid as civilians in civilian areas as well as the general limitations of military intelligence, it is quite impossible for anyone to expect that Israel would have been able to identify all targets with 100 percent precision and no mistakes.

Do dead civilians mean war crimes? Without further information, it is impossible to establish the grounds for accusing Israel of war crimes. By contrast, the information is quite clear on the Hezbollah crimes of combatant location and dress.

Amnesty and Human Rights Watch claimed that the use of civilian shields by Hezbollah does not "release the opposing party from its obligations towards the protection of the civilian population." With all due respect, this is nonsense. When a combatant hides in a civilian house, the house ceases to be a civilian target and becomes a military target. Moreover, under the law of proportionality, it is permissible to attack this house even if there will be collateral civilian casualties, so long as the casualties are not excessive. So Hezbollah's use of civilian shields is very relevant to the legal standard to be applied. The more civilian shields used by Hezbollah, the more Israel may attack what might otherwise be civilian targets, and the more civilians that may be killed by legal Israeli attacks.

Amnesty International's report specifically accused Israel of violating the rule of distinction in targeting civilian homes in Bint Jbeil, where house-to-house fighting occurred. Nowhere does Amnesty mention that Hezbollah fighters were entrenched in residential and commercial areas of Bint Jbeil, including the center of town. There is no way for readers of the report to know that Israel's fighting in Bint Jbeil was actually in compliance with the rule of distinction.

Other Spurious Charges Against Israel

Other charges rely on misdirection or blind acceptance of wartime propaganda.

Amnesty's report mentions the bombing of a certain bridge over the Sofi River on the road to Damascus that would cost an estimated $65 million to replace. One observer reports: "This bridge is not used by Hezbollah since it lies in a mountain resort area of Mt. Lebanon, far away from the south of Lebanon. Hence it has no strategic value for the Israeli fight against Hezbollah. But it was a beautiful bridge and it was the symbol of the reconstruction of Lebanon after the civil war." Beautiful or not, bridges are legitimate military targets in war, especially when they lie on the road connecting Hezbollah's main arms supplier, Syria, to Lebanon.

Human Rights Watch's one major report on the war stated that on July 23, Israeli warplanes struck two clearly marked Red Cross ambulances in the village of Kana. Six Red Cross workers were injured in the attack, and the three patients they were treating suffered additional injuries. Now this is a shocking incident that would be very disturbing were it not for the fact that, as the Australian foreign minister pointed out, if one actually examined the photographic evidence, "it is beyond serious dispute that this episode has all the makings of a hoax." Specifically, if one looks at the photographs of the ambulances in question, it is quite clear that they were never struck by any missiles and that such damage as they suffered occurred long before the war.

How many others of Human Rights Watch's claims are hoaxes may never be known. The organization's report is rife with claims without evidence other than Lebanese complaints, often clearly exaggerated and under the cloak of anonymity.

Understanding the Rule of Proportionality

On July 20, UN Secretary-General Kofi Annan stated that Israel had used excessive and disproportionate force as evidenced by the fact that "a number of Israeli actions have hurt and killed Lebanese civilians and military personnel and caused great damage to infrastructure." Louise Arbour, the UN High Commissioner for Human Rights, claimed that Israel was violating the rule of proportionality because Israeli "bombardment of sites with alleged military significance but resulting invariably in the killing of innocent civilians is unjustifiable."

Yet Arbour and Annan apparently don't know the first thing about the rule of proportionality, which says it is permissible to attack military targets even though it inevitably results in the loss of innocent civilian life, as long as the damage to protected civilians is not excessive in relation to the military need.

French President Jacques Chirac claimed on July 14 that Israel's counterstrike on Lebanon was "totally disproportionate" to Hezbollah's July 12 attack on Israeli positions. This criticism, which was echoed elsewhere in Europe, is apparently based upon the idea that international law forbids Israel to have used more force in defending itself than Hezbollah used in attacking it. That claim, however, has no basis in international law.

When states act in self-defense in response to an armed attack, they may use as much force as necessary to achieve the military objective. Thus Britain could use as much force as needed to retake the Falklands, irrespective of the amount of force used by Argentina in taking the islands. The United States could use as much force as it needed in order to topple the regime in Afghanistan; it did not need to limit itself to the amount of force used by al-Qaeda in the 9/11 attacks.

Under the law of self-defense, Israel could use as much force as necessary to reduce or eliminate Hezbollah's fighting abilities and to liberate its captured soldiers.

Kofi Annan's repeated claims that Israel somehow engaged in forbidden "collective punishment" in Lebanon also has no basis in international law. There is no such law in the general laws of war. The ban on collective punishment comes from Article 33 of the Fourth Geneva Convention, and it concerns civilians under the control of a different warring party. In our case, Article 33 could apply to Lebanese on Israeli soil or Israeli-occupied soil, but it has no application to Israeli actions concerning Lebanese on Lebanese soil. Nothing that Israel did in Lebanon did or could fall under the scope of the ban on collective punishment.

The Use of Cluster Bombs

Critics of Israel note that Israel used cluster bombs in greater amounts during the closing days of the war, and suggested that this constitutes a war crime. There are certain weapons such as some types of poison gas that are always illegal due to specific treaties. Cluster bombs are not among these weapons. Thus, it is generally legal to use cluster bombs.

Cluster bombs are anti-personnel weapons and their use must conform to the laws that apply to every other weapon -- they have to be used with distinction and with proportionality. They must be used against legitimate targets and they must be used so that any anticipated collateral damage to protected targets is not excessive in relation to the military need. That means that Israel would be expected to use such anti-personnel weapons when the chance of hitting civilians was lowest and the chance of hitting Hezbollah fighters was highest. That is exactly what Israel did. It used this weapon primarily during the last stages of fighting when nearly all civilians had fled southern Lebanon. Only then was it possible to use anti-personnel weapons widely and be certain that the likely targets were Hezbollah fighters.

The criticism for Israeli use of cluster bombs came primarily from Human Rights Watch and Amnesty International, and reflects these organizations' long-standing campaign against cluster bombs.

Notice the irony here. Cluster bombs are a way of killing people while reducing property damage, because the weapons widen the killing zone of an explosion. So on the one hand, these groups accuse Israel of excessive property destruction and even use the property destruction as "evidence" of Israeli war crimes of indiscriminate attacks. On the other hand, the same groups say that attacking Hezbollah personnel without extensive property destruction is also a war crime.

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About the Author

Dr. Avi Bell of the Faculty of Law of Bar-Ilan University is currently a visiting professor at Fordham Law School. He specializes in international law, particularly the laws of war. Dr. Bell served in an IDF reserve paratrooper brigade in combat in the recent conflict in Lebanon. This Jerusalem Issue Brief is based on his presentation at the Institute for Contemporary Affairs in Jerusalem on October 3, 2006.

Visitor Comments: 9

Why doesn't Israel sue Hizbolla at the Hague for war crimes and restitution ?? As a public relations ploy it worked for the Palestinians, why can't it work for us ?

(8)
joan,
November 16, 2006 7:29 PM

Israelies' War Crimes .Where were these voices in '33-'45

What Hutzpah! I am ttoo struck dumb tocomminicate.j

(7)
Ivor,
November 14, 2006 1:01 PM

A clear statement of the Israeli position.

Dr. Bell, in setting out the legal position regarding the recent conflict with Lebanon, shows up the incredibly anti Israel bias of the reports by "Human Rights Watch" & "Amnesty International". But where is the appropriate media defence? The attack is deafening on the British media!

(6)
RyaSaperstein,
November 13, 2006 9:32 AM

What is excessive?

While "it is permissible to attack military targets even though it inevitably results in the loss of innocent civilian life, as long as the damage to protected civilians is not excessive in relation to the military need", the world seems to think that all Israeli responses are always excessive. The problem with this distinction is that it is subjective. The Israeli commanders may think that there is a military need to attack a target, but a biased observer could always claim that the military need is questionable.

(5)
Jeanette,
November 13, 2006 7:17 AM

Truth in News

Thank you for bringing out the truth in these matters to counteract the reports that we hear or read in most news-reporting agencies.

(4)
DesmondSlade,
November 13, 2006 5:31 AM

Blaiming Israel

This article should appear on the front page of EVERY newspaper in the World. But guess what, none of them will have the moral fortitude to do it. The truth hurts if you are a liar.

(3)
alaa,
November 13, 2006 5:11 AM

thanks or this site keep up with me

thanks for this site , keep up with me

(2)
Anonymous,
November 13, 2006 4:16 AM

importance of learning and teaching truth

The imperative of understanding and countering the role of propaganda by enemies has gotten mislaid somehow. We cannot afford to be stupid in the face of a war launched by totalitarian regimes whose goal is establishing hegemony over the Middle East and the rest of the world using Israel as its portal.

(1)
Margarita,
November 12, 2006 11:05 PM

good article

good article, but i hope that we will find the way to make not only Jews read it. it woudl be good idea to forward it to all major papers.

I'm told that it's a mitzvah to become intoxicated on Purim. This puzzles me, because to my understanding, it is not considered a good thing to become intoxicated, period.

One of the characteristics of the at-risk youth is their use of drugs, including alcohol. In my experience, getting drunk doesn't reveal secrets. It makes people act stupid and irresponsible, doing things they would never do if they were sober. Also, I know a lot about the horrible health effects of abusing alcohol, because I work at a research center that focuses on addiction and substance abuse.

Also, I am an alcoholic, which means that if I drink, very bad things happen. I have not had a drink in 22 years, and I have no intention of starting now. Surely there must be instances where a person is excused from the obligation to drink. I don't see how Judaism could ever promote the idea of getting drunk. It just doesn't seem right.

The Aish Rabbi Replies:

Putting aside for a moment all the spiritual and philosophical reasons for getting drunk on Purim, this remains an issue of common sense. Of course, teenagers should be warned of the dangers of acute alcohol ingestion. Of course, nobody should drink and drive. Of course, nobody should become so drunk to the point of negligence in performing mitzvot. And of course, a recovering alcoholic should not partake of alcohol on Purim.

Indeed, the Code of Jewish Law explicitly says that if one suspects the drinking may affect him negatively, then he should NOT drink.

Getting drunk on Purim is actually one of the most difficult mitzvot to do correctly. A person should only drink if it will lead to positive spiritual results - e.g. under the loosening affect of the alcohol, greater awareness will surface of the love for God and Torah found deep in the heart. (Perhaps if we were on a higher spiritual level, we wouldn't need to get drunk!)

Yet the Talmud still speaks of an obligation on Purim of "not knowing the difference between Blessed is Mordechai and Cursed is Haman." How then should a person who doesn't drink get the point of “not knowing”? Simple - just go to sleep! (Rama - OC 695:2)

All this applies to individuals. But the question remains - does drinking on Purim adversely affect the collective social health of the Jewish community?

The aversion to alcoholism is engrained into Jewish consciousness from a number of Biblical and Talmudic sources. There are the rebuking words of prophets - Isaiah 28:1, Hosea 3:1 with Rashi, and Amos 6:6, and the Zohar says that "The wicked stray after wine" (Midrash Ne'alam Parshat Vayera).

It is well known that the rate of alcoholism among Jews has historically been very low. Numerous medical, psychological and sociological studies have confirmed this. The connection between Judaism and sobriety is so evident, that the following conversation is reported by Lawrence Kelemen in "Permission to Receive":

When Dr. Mark Keller, editor of the Quarterly Journal of Studies on Alcohol, commented that "practically all Jews do drink, and yet all the world knows that Jews hardly ever become alcoholics," his colleague, Dr. Howard Haggard, director of Yale's Laboratory of Applied Physiology, jokingly proposed converting alcoholics to the Jewish religion in order to immerse them in a culture with healthy attitudes toward drinking!

Perhaps we could suggest that it is precisely because of the use of alcohol in traditional ceremonies (Kiddush, Bris, Purim, etc.), that Jews experience such low rates of alcoholism. This ceremonial usage may actually act like an inoculation - i.e. injecting a safe amount that keeps the disease away.

Of course, as we said earlier, all this needs to be monitored with good common sense. Yet in my personal experience - having been in the company of Torah scholars who were totally drunk on Purim - they acted with extreme gentleness and joy. Amid the Jewish songs and beautiful words of Torah, every year the event is, for me, very special.

Adar 12 marks the dedication of Herod's renovations on the second Holy Temple in Jerusalem in 11 BCE. Herod was king of Judea in the first century BCE who constructed grand projects like the fortresses at Masada and Herodium, the city of Caesarea, and fortifications around the old city of Jerusalem. The most ambitious of Herod's projects was the re-building of the Temple, which was in disrepair after standing over 300 years. Herod's renovations included a huge man-made platform that remains today the largest man-made platform in the world. It took 10,000 men 10 years just to build the retaining walls around the Temple Mount; the Western Wall that we know today is part of that retaining wall. The Temple itself was a phenomenal site, covered in gold and marble. As the Talmud says, "He who has not seen Herod's building, has never in his life seen a truly grand building."

Some people gauge the value of themselves by what they own. But in reality, the entire concept of ownership of possessions is based on an illusion. When you obtain a material object, it does not become part of you. Ownership is merely your right to use specific objects whenever you wish.

How unfortunate is the person who has an ambition to cleave to something impossible to cleave to! Such a person will not obtain what he desires and will experience suffering.

Fortunate is the person whose ambition it is to acquire personal growth that is independent of external factors. Such a person will lead a happy and rewarding life.

With exercising patience you could have saved yourself 400 zuzim (Berachos 20a).

This Talmudic proverb arose from a case where someone was fined 400 zuzim because he acted in undue haste and insulted some one.

I was once pulling into a parking lot. Since I was a bit late for an important appointment, I was terribly annoyed that the lead car in the procession was creeping at a snail's pace. The driver immediately in front of me was showing his impatience by sounding his horn. In my aggravation, I wanted to join him, but I saw no real purpose in adding to the cacophony.

When the lead driver finally pulled into a parking space, I saw a wheelchair symbol on his rear license plate. He was handicapped and was obviously in need of the nearest parking space. I felt bad that I had harbored such hostile feelings about him, but was gratified that I had not sounded my horn, because then I would really have felt guilty for my lack of consideration.

This incident has helped me to delay my reactions to other frustrating situations until I have more time to evaluate all the circumstances. My motives do not stem from lofty principles, but from my desire to avoid having to feel guilt and remorse for having been foolish or inconsiderate.

Today I shall...

try to withhold impulsive reaction, bearing in mind that a hasty act performed without full knowledge of all the circumstances may cause me much distress.

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